June 11, 2013

Burlington Council Upholds Secrecy of Legal Memo on No-Trespass Ordinance

As Washington debates the balance between government secrecy and citizens' right to know, Burlington city councilors argued Monday night over whether to make public their own government secret: a written opinion from the city attorney's office about the legality of a new no-trespass ordinance.

The councilors ultimately voted 8-5 to maintain the secrecy of Assistant City Attorney Gregg Meyer's 2012 opinion on the constitutionality of the ordinance, which authorizes expulsions from the Church Street Marketplace for unruly behavior. The vote broke along party lines, with the council's five Progressive-aligned members against six Democrats, one independent and one Republican.

The showdown centered on an amendment offered by Ward 6 Democrat Norm Blais (pictured) that effectively negated a
Progressive-backed resolution calling for release of the legal opinion.
Blais told the council that the issue at hand actually involved
"politicians' remorse." He implied that the Progs now
regretted having voted for an ordinance that the council approved
unanimously in February.

Blais' suggestion of the Progs being motivated by politics drew
critical responses from two councilors. Ward 3 Progressive Vince
Brennan said he was "taken aback" by Blais' contention.
Fellow Prog Max Tracy (Ward 2) added that he viewed Blais' remarks
with "displeasure."

"What are you trying to hide?" a visibly angry Tracy asked.
And Ward 3 Progressive Rachel Siegel warned that if the council did
not agree to make the document public, "We are going to look
tremendously suspect." Siegel had earlier framed the issue as a
test of the Weinberger administration's stated commitment to
"transparency" in city affairs.

Councilors who argued successfully for
continued confidentiality of the year-old legal opinion cited the
principle of "attorney-client privilege." The Weinberger
administration says that the city council in this instance is acting
as the client of the city attorney.

Ward 5 Democrat Chip Mason, a corporate
lawyer, said the "sanctity" of such private communications
is "not something we should be waiving." Blais, who is also
an attorney, insisted "this is not a question of transparency."
Blais said there are "sound reasons for having privileged
communication with an attorney," but he did not specify what
those reasons are.

Ward 2 Progressive Jane Knodell
directly asked City Attorney Eileen Blackwood whether the council
should never override the confidentiality of attorney-client
communications regarding city matters. The council does have the
right to waive the privileged status of communications when
that would be "in the best interests of the city,"
Blackwood responded. Knodell then suggested it might be "in our
best interest to waive attorney-client privilege [in this instance]
to show we have nothing to hide."

Blais' amended version of the resolution, which
was approved unanimously after the Progs failed to defeat it, refers Franco's assessment to the council's ordinance
committee. That three-member panel chaired by Mason is instructed to
make recommendations to the full council on whether further action is
needed in regard to the no-trespass ordinance.

City Attorney Blackwood has meanwhile
offered to prepare a new assessment of the ordinance's
constitutionality that would be made public.

Franco contends in his memo that the
ordinance ignores rights of due process by allowing police to to ban individuals from the Marketplace
who are accused — but have not been convicted — of unlawful behaviors. Appeals of those expulsions,
which can take several weeks or months to resolve, are heard by a committee appointed by the Church Street Marketplace Commission.
Franco argues that such a body has no right to act in a judicial
capacity.

He adds that the city cannot lawfully
act on the presumption that it "owns" Church Street. "In
the case of public streets, nothing could be further from the truth,"
Franco's memo states. "Church Street is 'owned' by the very
people whose banishment the ordinance purports to authorize."

Presumably, the city's assessment argues otherwise. But as of Monday night, that legal opinion remained undisclosed.